The quintessential ethical question about capital punishment is whether it is morally right for the state to intentionally kill its citizens. This ethical question is quite apart from the narrower question of whether the state has the legal right to intentionally kill its citizens. The U.S. Supreme Court has clearly answered the legal question in the affirmative, as long as the killing does not violate the cruel and unusual punishment clause of the Eighth Amendment or the elaborate legal procedures created for its determination. However, just because the state has the legal right to employ capital punishment does not mean that it has the moral right to do so.
In the 21st century, it has become fashionable, especially among social scientists, to eschew ethical arguments about capital punishment for empirical inquiries. Ethical arguments, contend those who support this position, have not swayed death penalty opinion to the extent that empirical arguments regarding such issues as innocence, costs, and the fairness of the system have. Whether this contention is true is ultimately an empirical question. However, what many social scientists fail to appreciate is that empirical questions about capital punishment are guided by ethical questions. Consider the issue of general deterrence, for example. General deterrence is a mainstay of the capital punishment debate and refers to the belief that by executing convicted murderers, other would-be murderers will be prevented from murdering by the example that has been set. Much research has been devoted to testing the general deterrent effect of capital punishment, but all of that research tests the wrong empirical question. The more relevant question is whether executing convicted murderers is a better general deterrent than an alternative punishment, such as life imprisonment without opportunity of parole (LWOP)—that is, whether capital punishment has a marginal deterrent effect.
Asked in this way, the general deterrent question is given context; otherwise the question may be interpreted as comparing the deterrent effect of capital punishment to no punishment at all or to a significantly lesser punishment. Another problem with the empirical research—besides the formulation of the question to be tested and not being able to definitely answer the deterrence question—is that it ignores altogether the more fundamental ethical question of whether general deterrence is right or wrong. That is, is using a human being, albeit a convicted murderer, as a means to an end—the prevention of other human beings from murdering—right or wrong? If it is concluded that it is wrong to use a human being as a means to an end in this way, then the issue of whether capital punishment generally deters, or deters better than LWOP, for example, is superfluous. The point is that empirical research should be guided by the answers to ethical questions.
Capital punishment itself is fundamentally an ethical dilemma. Thus, all of the issues about capital punishment involve ethical questions and, as noted, these ethical questions should guide all empirical research. Whether the issue is deterrence, incapacitation, economic costs, miscarriages of justice, or arbitrary or discriminatory application, the answers to empirical questions are secondary to the more fundamental ethical questions. It is important to emphasize that some issues about capital punishment are purely ethical; they do not lend themselves to empirical research.
For example, one of the ironies of the capital punishment debate is that both proponents and opponents of the penalty cite a respect for the sanctity of human life as a fundamental component of their arguments. Proponents maintain that the execution of a death penalty-eligible killer is a morally acceptable way of showing society’s disdain for the taking of an innocent life. Opponents counter that killing people, even convicted murderers, does not show respect for human life. On the contrary, killing people, even convicted murderers, shows disrespect for human life because it violates human life’s sanctity. Whether capital punishment respects or disrespects the sanctity of human life is an ethical issue and not an empirical one.
Other purely ethical issues about capital punishment involve retribution and methods of execution. Retribution is the reason most death penalty proponents give for their support. Some scholars believe retribution and revenge are virtually synonymous. Others say there is an important difference between the two terms. Margaret Jane Radin, for instance, maintains that “revenge occurs when one person, with the idea of retaliation, injures someone she believes is responsible for an injury either to herself or to someone she cares about.” Revenge, for Radin, “is a private act between one person or group and another” and may or may not be justified. On the other hand, she defines retribution as “a public act” or, more specifically, “the formal act of a community against one of its members, and is carried out in the manner and for the reasons that are justified under the political constitution of the
community.” The purpose of retribution, argues Radin, is to prevent personal revenge, which she calls “revenge–utilitarianism.”
Herbert Packer describes two versions of retribution: “revenge theory” and “expiation theory.” Revenge theory is captured in the idea of lex talionis (“an eye for an eye”), while expiation theory is based on the premise that only through suffering punishment can an offender atone for his or her crime. Likewise, James Finckenauer distinguishes two versions of retribution. In one version, the criminal is paid back. This is retribution as revenge and vindictiveness. In a second version, retribution means that the criminal pays back for the harm he or she has done. The desert theorists call this “just deserts.”
Retribution as a justification for capital punishment, however it is defined, raises a host of ethical questions. Perhaps the most fundamental question is whether retribution is a legitimate penal goal. That is, is it right to execute capital offenders for retributive reasons? Only if one answers in the affirmative is it necessary to answer the further questions of on what basis does society have this right and by what means may society exercise that right.
Another basic ethical question is why capital punishment is necessary to achieve retribution. In other words, can retribution be achieved by a punishment other than capital punishment? Eighteen jurisdictions in the United States (17 states and the District of Columbia) and 141 countries in the world that have abolished capital punishment either in law or in practice distribute retribution (or any other penal goal for that matter) without capital punishment. If retribution is defined in terms of justice—that justice requires capital punishment for some crimes because they are so heinous and for some offenders because they are so evil—then an ethical question is why justice in such cases requires capital punishment. Why cannot justice be achieved by a punishment other than death? Similarly, if retribution is defined in terms of repayment or expiation or atonement, then can a capital offender repay, expiate, or atone for his or her crime with a punishment less than death. Though some maintain that lex talionis or “an eye for an eye” requires repayment in kind, others argue that no other crime is repaid in kind: Arsonists are not burned, rapists are not raped, and assaulters are not beaten. Why, then, must killers be killed?
Death penalty proponents sometimes argue that by allowing the state to seek revenge, relatives and friends of the victim(s) are relieved of the need to do so. An implication is that with the abolition of capital punishment, relatives and friends of a victim are more likely to seek personal revenge. However, as Justice William Brennan observed in his Furman v. Georgia (1972) decision, “There is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders.” During the moratorium on capital punishment in the United States between 1968 and 1977, there was no apparent increase in personal revenge, nor do states or countries without capital punishment have elevated levels of personal revenge. Thus, it appears that a need for revenge, assuming that revenge is a legitimate penal goal, can be satisfied by an alternative punishment, such as LWOP.
As for methods of execution, if it is assumed that capital punishment is an ethically defensible practice, then another ethical issue is whether there are better or worse ways to execute. As noted previously, the Eighth Amendment bans cruel and unusual punishments, which begs the question of what constitutes a cruel and unusual punishment. The U.S. Supreme Court has provided legal guidance. In Wilkerson v. Utah (1878), the court prohibited punishments that involved torture or unnecessary cruelty, such as emboweling alive, beheading, and quartering. In In re Kemmler (1890), the court expanded the meaning of cruel and unusual punishment to include punishments that involved torture or lingering death or something more than the mere termination of life, such as burning at the stake, crucifixion, or breaking on the wheel. In Weems v. United States (1910), the court barred excessive punishments, and stipulated that what constituted an excessive punishment is not fixed in time but changes with evolving social conditions. In Trop v. Dulles (1958), the court concluded that a punishment is cruel and unusual if it is an affront to human dignity and exceeds the limits of civilized standards, which draw their meaning from “the evolving standards of decency that mark the progress of a maturing society.”
Those evolving standards of decency, opined the court, are determined by “objective indicators, such as the enactments of legislatures as expressions of ‘the will of the people,’ the decisions of juries, and the subjective moral judgments of members of the Supreme Court itself.” Thus, whether a particular punishment or method of execution is cruel and unusual in violation of the Eighth Amendment is ultimately an ethical issue, and the U.S. Supreme Court has never ruled that a method of execution violated the Eighth Amendment. The court’s refusal to declare a method of execution cruel and unusual is ironic considering the ample evidence that each method of execution employed in the United States, with the possible exception of a firing squad, has on occasion involved torture and lingering death. In short, whether the method has been hanging, electrocution, lethal gas, or lethal injection, there is substantial empirical evidence of unconstitutionally botched executions. What constitutes “unnecessary cruelty,” “excessive punishment,” “an affront to human dignity,” and “exceeding the limits of civilized standards” cannot be answered empirically, but must be determined by subjective moral judgments.
Ethical issues about capital punishment can and should guide empirical analysis. Perhaps the most defensible rationale in support of capital punishment is incapacitation, which, in this case, is the prevention of convicted murderers (or other capital offenders) from killing (or committing other crimes) again by executing them. Death penalty opponents concede that capital punishment permanently removes a threat to society, but they question whether such a drastic measure is necessary. They argue that if an alternative penalty, such as LWOP, accomplishes the same purpose, it would be preferable because of the other costs associated with capital punishment (e.g., a possible brutalizing effect, execution of innocent persons, etc.).
A key empirical question, then, is whether capital punishment is necessary to protect society from the possible future actions of those who have already committed capital crimes. For proponents of the penalty, the answer to the question is a resounding yes. They argue that some criminals are irredeemable and will remain a potential threat to society as long as they live. They add that inmates can escape from prison or, in some cases, be released on parole through error or oversight. And even if they are never released, prisoners still may pose a threat to other prisoners, correctional personnel,
or the victims’ survivors or others. Empirical evidence supports each of these contentions, but it also shows that the threat posed by death-eligible offenders who are not executed is miniscule.
To ensure that no convicted capital offender killed again, all convicted capital offenders would have to be executed. There are several ethical problems with such a strategy. First, innocent people wrongfully convicted of capital crimes have been executed. If all convicted capital offenders were executed to prevent any one of them from killing again, it would be impossible to rectify the injustices done to the innocent people executed, their families and friends, and to a society that considered such acts immoral. To prevent such miscarriages of justice and still retain capital punishment, it would be necessary to identify convicted capital offenders who are innocent and spare them from death. This is no easy task because nearly all convicted capital offenders claim they are innocent, even though only a small percentage of them really are. Generally, it is only after considerable effort that proof of innocence is ever discovered, and rarely is such effort expended on death row inmates.
Some death penalty proponents argue that the chances of executing an innocent person could be greatly reduced if death eligibility were reserved for the “worst of the worst” among all those currently sentenced to die. The key empirical issue, of course, is identifying the very worst. Another empirical issue is that the “worst of the worst” sometimes escape execution (e.g., Gary Ridgway, the so-called Green River Killer), while murderers who clearly are not among the “worst of the worst” do not.
The economic costs of capital punishment versus an alternative punishment such as LWOP has become a formidable argument against capital punishment. Empirical evidence indicates that in most situations the capital punishment process (from investigation through execution) is much more expensive than alternative legal processes culminating in punishments such as LWOP. The ethical question involving costs is whether it is right to spend limited financial resources on such an expensive penalty when alternative penalties could suffice. Especially at a time when most death penalty states are in financial crisis, opponents argue, it makes little sense to fund capital punishment at the expense of health care, education, or public safety.
A formidable argument against capital punishment is that sometimes miscarriages of justice (i.e., wrongful convictions or wrongful executions) occur. The truth of this assertion is well documented. The ethical question is whether it is right to convict or to execute an innocent person. Even most death penalty proponents admit that such miscarriages of justice are wrong. Some proponents, however, are willing to accept occasional wrongful executions as the price to be paid for retaining capital punishment as a sentencing option. The arbitrary way capital punishment is imposed is another controversial issue. In the Supreme Court’s 1972 Furman decision abolishing capital punishment, the only point the five-member majority agreed on was that it was wrong to impose capital punishment arbitrarily or capriciously. Four years later, in its Gregg v. Georgia (1976) decision reinstating capital punishment, the seven-member majority believed, without any empirical evidence to support their belief, that new guided-discretion statutes would rid capital punishment of impermissibly arbitrary or capricious application. Nearly forty years after the Gregg decision, it is quite clear that the guided-discretion statutes approved by the court did not eliminate impermissible arbitrary or capricious administration of the penalty. The ethical question is: Is it right to continue to employ capital punishment in an impermissibly arbitrary and capricious way?
A related issue is impermissibly discriminatory application of capital punishment, particularly racial discrimination. Although racial discrimination did not command the court’s attention in Furman the way arbitrariness or capriciousness did, the court’s Furman majority was still disturbed by evidence of racial discrimination in the penalty’s administration. The court’s majority in Gregg believed that the new guided-discretion statutes would rid capital punishment of racial discrimination in the same way it would eliminate arbitrary or capricious application. Evidence suggests that the new death penalty statutes have failed in that mission. Racial discrimination (as well as other forms of discrimination such as gender and age discrimination) still infects capital punishment’s administration—not only discrimination based on the offender’s race but also discrimination based on the victim’s race. The ethical question is, Is it right to continue to employ capital punishment in a discriminatory way? The Supreme Court has continued to uphold the constitutionality of the death penalty, despite evidence of it being discriminatorily applied, at least in some cases. On the other hand, a majority of Supreme Court justices have ruled that the execution of juveniles, the insane, and the mentally challenged is wrong.
Many other ethical issues surrounding capital punishment persist. For example, many capital defendants receive inadequate legal representation. Prosecutors in capital cases have sometimes been known to engage in misconduct to obtain a guilty verdict and death sentence. Is it ethical to forcibly medicate mentally ill death row inmates to make them “sane” enough to stand trial and presumably execution? And is it right for physicians and other medical professionals to participate in executions? The ethical dilemma of capital punishment cannot be resolved without asking and answering the many ethical questions the penalty poses.
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